In this blog post, we will be considering the methods of Alternative Dispute Resolution (ADR) available in the UK. These are an alternative to getting a judge to decide a case and can often be better for both parties, as well as helping to alleviate the demands on the court system. The fewer cases that have to go to court, the shorter the wait will be for a case to be heard. In addition, many cases never really need a court ruling and ADR is intended to address that.
Furthermore, some cases now have to try ADR before they can be heard in a court. Even if it is not a case where attempting ADR is strictly compulsory, it is still encouraged, so parties will most likely go through some sort of ADR before the case gets to court. We will now consider what the benefits of using ADR are for the parties, before moving on to look at the different types of ADR available.
Benefits of ADR
One of the benefits of ADR for the parties seeking it is that it saves time for them, as well as for the courts. They don’t have to wait until a case can be heard – waiting times for ADR are generally much shorter than for court, which gives them a quicker resolution. Using ADR also means that both parties can choose a time that is convenient for them, instead of being assigned one by the court.
ADR is also more flexible in terms of solutions offered, as a compromise can be reached, such as a renegotiated payment plan. Courts only offer a few options that don’t allow for much negotiation, meaning a court case will often end the relationship between the parties.
Methods of ADR
Negotiation
The quickest and cheapest method of dispute resolution is negotiation between the parties. This is an informal approach that they may or may not use lawyers for and takes place directly and privately between the parties involved. There is no neutral third party involved, so the parties must both agree on the solution themselves. This decision is not enforceable in court, unless a new contract has been signed, which can be enforced in the same way as any other contract.
Mediation
In mediation, the parties voluntarily meet with a mediator (neutral third party) to discuss their dispute and try to reach an agreement. There is no particular procedure that mediation must follow, but it is normal to start with the parties exchanging documents a few days before the session. During the session, they will then present their side of the case. Everything said during mediation is private and can’t be used in court later.
The mediator does not make the final decision; instead, they try to help the parties reach an agreement together. If an agreement is reached, the parties will sign legally binding terms.
Conciliation
Conciliation is similar to mediation – it is voluntary, and everything said is confidential and without prejudice, so nothing said can later be used against the party in court if the case still goes there. However, instead of a mediator, there is a conciliator. The conciliator is a neutral third party, very similar to a mediator, except they can also suggest solutions to the dispute. Again, if a solution is found, the parties can sign legally binding terms.
Adjudication
Another method of ADR is adjudication. This was actually designed to resolve construction disputes, so the procedure to follow is set out in the Housing Grants, Construction and Regeneration Act 1996. However, adjudication is also available for disputes that don’t concern construction, provided that it is included in the original contract or both parties agree to it later.
To start adjudication, one party will usually serve a Notice of Adjudication to the other. This will include the details of the dispute, such as where, when and what parties are involved, as well as the type of remedy they are seeking. It will also have the names and addresses of the parties. An adjudicator will then be appointed, which can be done by the parties (in agreement) or by the Adjudicator Nominating Body (for a fee).
The adjudicator will then be served with a referral notice, which will include the details of the case and any supporting documents from the parties. They will examine all of this and give their decision. This is binding unless it is overruled by a court or arbitration ruling.
Arbitration
Arbitration works in a way that is very similar to how a court case would proceed, using the rules set out in the Arbitration Act 1996. A nominated arbitrator will hear the dispute and decide what action should be taken. The decision of an arbitrator is binding on the parties and is called an award. In fact, arbitration is not technically a form of ADR, but it is often useful to discuss it as an option in your work.
Wrapping Up
I hope that you are now more familiar with the different types of ADR available in the UK. Next time, we will be looking at the advantages of the different methods, so come back in two weeks for that!
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